Wojciechowska v Secretary, Department of Communities and Justice - [2025] NSWCATAD 2 - NSWCATAD 2024 case summary — Zoe

NSWNSWCATAD

Wojciechowska v Secretary, Department of Communities and Justice

[2025] NSWCATAD 2

NCAT Administrative and Equal Opportunity|2024-02-02|Before: Armstrong J

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Source facts

Court

NCAT Administrative and Equal Opportunity

Decision date

2024-02-02

Before

Armstrong J

Source

Original judgment source is linked above.

Judgment (65 paragraphs)

[1]

1997, the Respondent's decision not to give access to Ms Britton's CV is remitted to the Respondent for reconsideration in accordance with these reasons. (i) The Respondent's decision to refuse to provide access to the information in Item 11 because there is an overriding public interest against disclosure of the information is affirmed. (3) In relation to Ms Wojciechowska's third application I make the following order: (a) The Respondent's decision that the third access application is not a valid access application is affirmed. Catchwords: ADMINISTRATIVE LAW - Freedom of information - Access to information - Exemptions - Ground for refusing access -- Whether application for access is valid ADMINISTRATIVE LAW - Jurisdictional error ADMINISTRATIVE LAW - Hearing rule - Disclosure - Nature of materials requiring disclosure ADMINISTRATIVE LAW - Hearing rule - Hearing - Adjournment Legislation Cited: Administrative Decisions Review Act 1997 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Evidence Act 1995 Government Information (Public Access) Act 2009 (NSW) Government Information (Public Access) Regulation 2018 Privacy and Personal Information Protection Act 1998 (NSW) Cases Cited: Allesch v Maunz (2000) 74 ALJR 1206 Amos v Western NSW Local Health District [2017] NSWCATAD 176 Australians for Sustainable Development Inc v Barangaroo Delivery Authority [2013] NSWADT 252 Betzis v Commissioner of Police [2020] NSWCATAD 71 Black v Hunter New England Local Health District [2011] NSWADT 295 Brazel v Sydney Water Corporation [2021] NSWCATAP 13 Cianfrano v Department of Commerce (NSW) [2005] NSWADT 282 Department of Communities and Justice v Zonnevylle [2020] NSWCATAP 126 FAI Insurances Ltd v Winneke (1982) 151 CLR 342 Gypsy Jokers Motorcycle Club Incorporated v Commissioner of Police (2008) 234 CLR 532 Jeray v Blue Mountains City Council [2023] NSWCATAD 99 Kioa v West (1985) 159 CLR 550 Minister for Immigration and Border Protection v WZARH [2015] HCA 40 Newcastle City Council v Newcastle East Residents Action Group [2018] NSWCATAP 245 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 Public Service Association and Professional Officers Association, Amalgamated Union of NSW v Premier's Department [2002] NSWADT 277 Sullivan v Department of Transport (1978) 20 ALR 323 Wojciechowska v Commissioner of Police (NSW) [2020] NSWCATAP 173 Texts Cited: Mark Aronson, Judicial review of administrative action and government liability (7th ed, 2022, Thomson Reuters (Professional) Australia Limited) Category: Principal judgment Parties: Paulina Wojciechowska (Applicant) Secretary, Department of Communities and Justice (Respondent)

[3]

Overview

Ms Wojciechowska applied to the Secretary, Department of Communities and Justice (the Respondent) for access to information under the Government Information (Public Access) Act 2009 (NSW) (GIPA Act). Ms Wojciechowska now applies to the Tribunal for a review of those decisions.
The Tribunal made procedural directions for the parties to file and serve evidence and submissions and the matters were listed together for hearing on 2 February 2024. On the morning of the hearing Ms Wojciechowska appeared by Audio Visual Link and submitted that the proceedings were procedurally unfair and therefore "null and void for jurisdictional error". She gave two reasons for that submission.
Firstly she has not been served with the confidential bundle of material that the Respondent provided to the Tribunal (the confidential material). Ms Wojciechowska submitted that the Tribunal did not tell her that the Respondent would provide documents on a confidential basis and she is entitled to see that material. The Tribunal should order that all the confidential material be served on her but impose a condition that she not share the information with others. Ms Wojciechowska said she has nothing to say at the hearing because she has not seen the documents and the Tribunal is acting without jurisdiction. Ms Wojciechowska described this as her "major point".
For the reasons I give below, these proceedings are not "null and void" and there is no procedural unfairness. The Tribunal will not be in breach of the hearing rule of procedural fairness by failing to direct an agency to serve an applicant with information where it is claimed that there is an overriding public interest against disclosing that information.
Secondly, Ms Wojciechowska said that the Respondent has not served her with their evidence and submissions (the open material) in accordance with the Tribunal's directions. Apart from the Respondent's "Submissions in Reply" dated 31 January 2024 which were served by post, Ms Wojciechowska said that the remainder of the open material was sent to her by email and she did not consent to electronic service. Ms Wojciechowska described this submission as "less relevant" than her submission that the Respondent should have served her with the confidential material.
The Respondent served the open material by post in accordance with the Civil and Administrative Tribunal Rules 2014 (NCAT Rules) when they became aware that Ms Wojciechowska did not consent to electronic service. But that did not happen until 23 January 2024, nine days before the hearing. Nevertheless, there is no procedural unfairness because of the manner in which the Respondent served the open material.
Ms Wojciechowska did not apply for an adjournment so that the agency could serve her with the confidential material, nor did she apply for an adjournment to give her more time to respond to the open material. For the reasons I give below, I did not suggest that she do so.
Ms Wojciechowska made various comments during the oral hearing that the Tribunal was not validly constituted, that there had been a constant replacement of Tribunal members and that I should not hear her application because there was, at least, an apprehension of bias. I understand that one of Ms Wojciechowska's concerns is that because I did not preside over the directions hearings in these proceedings, or over other proceedings to which she has been a party, I do not understand the history of the proceedings between her and the Respondent.
As Ms Wojciechowska chose not to put any of these comments in the form of an application for me to recuse myself, or to make any other interlocutory order, it is not necessary or appropriate for me to consider them further.
After hearing the parties' submissions on the preliminary issue of breach of procedural fairness and want of jurisdiction, I went on to hear the substantive application under the GIPA Act.

[8]

Modifications to procedural fairness under the GIPA Act

Section 107 of the GIPA Act modifies the rules of procedural fairness in relation to "information for which there is an overriding public interest against disclosure". I will refer to such information as "confidential information". 107 Procedure for dealing with public interest considerations (1) In determining an application for NCAT administrative review, NCAT is to ensure that it does not, in the reasons for its decision or otherwise, disclose any information for which there is an overriding public interest against disclosure.
The general rule is that the Tribunal is to ensure that it does not disclose "confidential information" when determining an application for administrative review. If the Tribunal itself is of the opinion that it is necessary to do so to prevent the disclosure of confidential information, it must close the hearing. Section 107(2) of the GIPA Act states that: (2) On an NCAT administrative review, NCAT must receive evidence and hear argument in the absence of the public, the review applicant and the applicant's representative if in the opinion of NCAT it is necessary to do so to prevent the disclosure of information for which there is an overriding public interest against disclosure.
Under s 107(3) the Tribunal must close the hearing if the relevant Minister or agency applies for the hearing to be closed: (3) On an NCAT administrative review, NCAT must, on the application of the Minister administering this Act or the agency, receive evidence and hear argument in the absence of - (a) the public and the applicant, and (b) the applicant's representative if NCAT is of the opinion that it is necessary to do so to prevent the disclosure of information for which there is, or for which there could be or is claimed to be, an overriding public interest against disclosure. (Emphasis added.)
The Tribunal summarised the effect of these provisions in Brazel v Sydney Water Corporation [2021] NSWCATAP 13 at [53] - [54]: 53 This Tribunal and one of its predecessors, the Administrative Decisions Tribunal, have considered the meaning and effect of s 107 of the GIPA Act in a number of decisions. 54 In Black v Hunter New England Local Health District [2011] NSWADT 295, the Administrative Decisions Tribunal stated: "30 Without a procedure along the lines of section 107, the general rule of an open hearing and the open receipt of evidence would apply, which would be contrary to the objects of the GIPA Act and also render the determination of the respondent nugatory. This clearly was not the intention of Parliament. . . . 37 … subsection 107(3) is mandatory in operation in that where the Tribunal forms the opinion as prescribed in that subsection it must receive the evidence and hear argument the subject of the agency's application in the absence of the public, the applicant and the applicant's representative."
The opinion, as prescribed in s 107(3), is the opinion that it is necessary to close the hearing "to prevent the disclosure of information for which there is, or for which there could be or is claimed to be, an overriding public interest against disclosure opinion".
Section 107 of the GIPA Act regulates the disclosure of "confidential information" during the hearing when the Tribunal is receiving evidence and hearing argument. That provision prevails to the extent of any inconsistency with the NCAT Act or the Administrative Decisions Review Act 1997 (NSW): GIPA Act, s 112A.
Section 66 of the NCAT Act sets out general and specific rules about the disclosure of "confidential information" in contexts other than the hearing including before a hearing has taken place. Section 66(1) states the general rule which is that nothing in the NCAT Act requires or authorises any person or body (including a Respondent) to disclose information to another person or body (including an applicant) if there is an overriding public interest against disclosure of that information. 66 Effect of Government Information (Public Access) Act 2009 (1) General rule Except as provided by this section, nothing in this Act requires or authorises any person or body to disclose information to another person or body if there is an overriding public interest against the disclosure of the information under the Government Information (Public Access) Act 2009.
There are exceptions to this general rule for disclosure of "confidential information" to the Tribunal. Section 66(2) and (3) provide that: (2) Disclosure to person or body other than Tribunal The provisions of the Government Information (Public Access) Act 2009 continue to apply to the disclosure of information to any person or body other than to the Tribunal as if this Act had not been enacted. (3) Disclosure to Tribunal If a provision of this Act requires or authorises any person or body to disclose information to the Tribunal in relation to any proceedings before it and there is an overriding public interest against the disclosure of the information under the Government Information (Public Access) Act 2009 - (a) the Government Information (Public Access) Act 2009 does not prevent the disclosure of the information to the Tribunal, and (b) the Tribunal is to do all things necessary to ensure that the information is not disclosed to any person other than a member of the Tribunal as constituted for the purpose of the proceedings unless the person or body disclosing the information to the Tribunal consents to the further disclosure.
One effect of s 66(3) of the NCAT Act is that where the Tribunal directs an agency to file and serve material, and there is an overriding public interest against disclosure of that material, the Tribunal is to do "all things necessary to ensure that the information is not disclosed to any person other than a member of the Tribunal as constituted for the purposes of the proceedings…"
The text of s 66(3)(b) of the NCAT Act refers to information for which there is an overriding public interest against disclosure. Unlike s 107(3) of the GIPA Act, it does not expressly refer to information "for which there could be or is claimed to be, an overriding public interest against disclosure." One purpose of s 107(3) of the GIPA Act and s 66(3)(b) of the NCAT Act, when read together, is to ensure that "confidential information" is not disclosed to an applicant without the agency's consent. The Tribunal cannot determine whether the material contains "confidential information" until after hearing the evidence and submissions. If the Tribunal directs an agency to serve purportedly "confidential information" on an applicant before the hearing it risks being in breach of s 107(3) of the GIPA Act when it receives evidence and hears argument during the hearing. Such a direction would defeat the purpose of s 107(3) of the GIPA Act.
Based on the text, context and purpose of these provisions, it was parliament's intention to modify the disclosure aspect of the hearing rule of procedural fairness in relation to the service on an applicant of purportedly "confidential information" (information for which there is an overriding public interest against disclosure) lodged by an agency under the GIPA Act. The Tribunal will not be in breach of the hearing rule of procedural fairness by failing to direct an agency to serve purportedly "confidential information" on an applicant before the hearing. It follows that the proceedings are not null and void because of the Tribunal's failure to make such a direction.
To comply with s 66(3)(b) of the NCAT Act, the Tribunal may make an order under s 64(1)(d) of the NCAT Act prohibiting disclosure to the applicant of the content of confidential information lodged with the Tribunal.

[10]

Procedural steps

At the Directions Hearing on 7 November 2023, Ms Wojciechowska did not appear but the Tribunal allowed her to be represented by an agent, Mr Krzysztof Bolejko.
The Tribunal made the following directions: 1. Directions 2 to 6 made on 3 October 2023 are vacated. 2. Secretary, Department of Communities and Justice to give to the Tribunal and all other parties the following material: evidence including statements, documents and submissions on or before 21 November 2023. 3. Paulina Wojciechowska is to give to the Tribunal and all other parties the following material: evidence including statements, documents and submissions on or before 19 December 2023. 4. The Information Commissioner is to give to the Tribunal and all other parties the following material: submissions on or before 16 January 2024. 5. The parties are to advise whether a hearing can be dispensed with and the matter determined on the papers on or before 16 January 2024. 6. Secretary, Department of Communities and Justice to give to the Tribunal all other parties the following material: all evidence in reply and submissions on or before 31 January 2024 7. Paulina Wojciechowska is to give to the Tribunal and all other parties any written submissions in response to the submissions filed by the Information Commissioner on or before 31 January 2024 8. The matter remains listed for an oral hearing on 2 February 2024 (unless an oral hearing is dispensed with). Note: The Tribunal notes that Ms Wojciechowska has indicated that she agrees to the matter being determined on the papers
The Respondent lodged the following open and confidential material with the Tribunal: 1. Three affidavits (Affidavit of James O'Young dated 21 November 2023, Exhibit R3, Affidavit of Scott Mayer dated 22 November 2023, Exhibit R4; and Affidavit of Michael McIntosh dated 23 November 2023, Exhibit R5 (the three witness affidavits); 2. Respondent's Open Bundle of Documents (two volumes) received by the Tribunal on 22 November 2023, Exhibit R6 (open bundle); 3. Respondent's Confidential bundle of documents received by the Tribunal on 22 November 2023, Exhibit R7; (confidential material) 4. Respondent's written submissions dated 23 November 2023; (Respondent's submissions); and 5. Respondent's written submissions in Reply dated 31 January 2024; (Respondent's reply submissions).
The material listed at (1), (2), (4) and (5) constitute the "open material".

[13]

Electronic service of open material

On 23 November 2023, two days after the date given at the directions hearing for the filing and service of material, Mr Sherrington sent Ms Wojciechowska an email attaching sworn but unsealed versions of two of the three witness affidavits in Item (1) above. He apologised for the delay in providing those materials and ended the email with the following offer: I would be pleased to arrange for a printed copy of these materials to be posted to you. If you would like me to do so, please let me know the address I should use for that purpose.
An hour or so later, Mr Sherrington sent Ms Wojciechowska an email via a document sharing service called "Kiteworks". The email contained a link to access the Respondent's open bundle. Later the same day, Mr Sherrington sent Ms Wojciechowska a further email attaching sworn and sealed versions of the three witness affidavits and a sealed version of the Respondent's submissions.
The open material was emailed to Ms Wojciechowska's email address. The address of the email Mr Sherrington used is in paragraph 4 of his affidavit. I accept his evidence that that was the email address nominated by Ms Wojciechowska in her applications for administrative review. He knew the email address was active during the relevant period because he had received emails from that address on 6 and 7 November 2023, 18 January 2024 and 1 February 2024. On 23 November 2023 Mr Sherrington emailed the three witness affidavits, the Respondent's open bundle of documents and a sealed version of the Respondent's submissions.
Mr Sherrington has not received a reply to any of those emails. Ms Wojciechowska did not deny that she had received these emails. I find that Ms Wojciechowska was aware that she had received an email from the Respondent on 23 November 2023 containing material filed in these proceedings. I am not satisfied that Ms Wojciechowski read Mr Sherrington's covering email making the offer of service by post or opened the attachments.

[14]

The Respondent did not serve Ms Wojciechowska with their open material in accordance with the NCAT Rules until 23 January 2024

The Tribunal's direction was for the parties to "give" the other party certain material by a specified date. The reference to "give" in the directions is a reference to serving that material in accordance with Rule 13(2) of the Civil and Administrative Tribunal Rules 2014 (NCAT Rules): (2) Means for service or giving of notices and documents A notice or document may be served on or given to a person or body - (a) by means of personal service, or (b) by posting a copy of the notice or document, addressed to the person or body - (i) to the person's or body's address for service, or (ii) if the person or body does not have an address for service, to the person's or body's business or residential address (or the business or residential address last known to the person or body serving the notice or document), or (c) by leaving a copy of the notice or document, addressed to the person or body - (i) at the person's or body's address for service, or (ii) if the person does not have an address for service, at the person's or body's business or residential address (or the business or residential address last known to the person or body serving the notice or document), or . . . . . . (g) in the case of a person or body that has consented to electronic service by means of an email address or mobile phone number specified by the person or body - by transmitting the notice or document in an electronic format, addressed to the person or body, to that address or number
The effect of the Rule 13(2)(g) of the NCAT Rules is that unless a party consents to electronic service as described in that Rule, the document has not been served. Rule 13(2)(i) allows for service "in such other manner as the Tribunal or a registrar directs in a particular case". The Tribunal did not direct service to be effected in any other manner. The Respondent emailed the open material to Ms Wojciechowska but she had not consented to that manner of service.
On the basis of [15] - [18] of Mr Sherrington's affidavit and the answers he gave in cross-examination, I find that on 16 January 2024, Mr Sherrington sent Ms Wojciechowska an email requesting that she notify him as to whether she required any of the agency's witnesses for cross-examination. On 18 January 2024, Ms Wojciechowska replied by email thanking him for the email and stating that: Unfortunately I cannot inform you of that as I have not yet been provided with all of your materials. You are in default of the Tribunal's orders. Please provide all of your materials immediately. For clarity it is denied that you served anything on me in this matter. Once you serve your materials I will need 8 weeks minimum to prepare my materials.
On 18 January 2024, Mr Sherrington prepared a letter to Ms Wojciechowska enclosing all of the agency's open material and caused it to be sent by registered post to the postal address nominated on the application for administrative review. Mr Sherrington stated that while he did not personally post that material, he left the material and a covering letter together and attached a post it note with instructions on how it should be posted. In accordance with the practices and procedures of the Crown Solicitors Office, his understanding is that someone else placed the material in an envelope and posted it at the Post Office.
The Australia Post online tracking document records that delivery to Ms Wojciechowska's address was attempted on 23 January 2024. It also records that as at 3.08 on 23 January 2024, the letter was "awaiting collection" at Lenah Valley LPO.
Ms Wojciechowska did not admit that Mr Sherrington posted the letter or that delivery was attempted. She questioned Mr Sherrington about the purported service of the letter.
A document may be served on or given to a person "by posting a copy of the notice or document addressed to the person or body to the person's or body's address for service": NCAT Rules r 13(2)(b). Proof of service by post does not require proof of personal service. I find that, in accordance Rule 13(2)(b)(i) of the NCAT Rules, the agency's open material was served on Ms Wojciechowska by post on 23 January 2024. Mr Sherrington posted a copy of that material to her at her address for service. The Australia Post online tracking document is a contemporaneous record confirming that delivery was attempted on 23 January 2024. It also records that as at 3.08 on 23 January 2024, the letter was "awaiting collection" at Lenah Valley LPO.
Regardless of whether Ms Wojciechowska received a notice from the Post Office that a parcel was awaiting collection, as a matter of law, the letter has been served by post. The mode of service in Rule 13(2)(b)(i) does not require proof that the material was actually delivered to the person.

[15]

Ms Wojciechowska did not tell the Tribunal why she did not comply with the Tribunal's directions

Ms Wojciechowska did not comply with the Tribunal's direction to give her evidence and submissions to the Tribunal and the other parties by 19 December 2023. She did not tell the Tribunal until the day of the hearing that her main reason for not complying was that she had not been served with the confidential material. Nor did she tell the Tribunal that she had not been served with the open material electronically rather than by post.
On 18 January 2024, Ms Wojciechowska wrote to the Tribunal in response to a direction made on 7 November 2023. That direction was that by 16 January 2024 the parties are to advise whether a hearing can be dispensed with under s 50(1)(c) of the NCAT Act. In that email, Ms Wojciechowska wrote: I agree that it is likely that the hearing might be needed. However, the hearing on 2 February 2024 is unsustainable as the respondent has not yet provided me with all of its materials. Once again the respondent breached the Tribunal orders. Other than above I cannot assist the Tribunal with a more definite statement at this juncture. Once the respondent complies with the directions of the Tribunal, I will be able to start preparing my materials and especially my submissions. Then I will be in a position to say if the hearing is needed with certainty. The Tribunal proceeding when one party (the Secretary of Department of Communities and Justice) has not yet been provided the other party (me) with all the materials would necessarily proceed in denial of procedural fairness. The Tribunal acting in the breach of procedural fairness acts without jurisdiction and all of its decisions are void.
In my short reasons for deciding that a hearing should not be dispensed with, dated 23 January 2024, I noted that: . . . the Applicant has not specified what material the Respondent has not provided nor the source of the duty or responsibility to file such material.
At the hearing Ms Wojciechowska explained that she did not contact the Tribunal about the Respondent's failure to serve the confidential material or its failure to serve the open material by post because she has been criticised for repeatedly communicating with the Tribunal and the Respondent about objections she has taken.

[17]

Findings and conclusion

The Tribunal took all reasonably practical measures to ensure that Ms Wojciechowska had a reasonable opportunity to be heard. It did so by making directions that the Respondent file and serve its material and that Ms Wojciechowska give to the Tribunal and all other parties her evidence including statements, documents and submissions on or before 19 December 2023. Ms Wojciechowska had notice of the hearing and appeared by AVL.
Despite being given a reasonable opportunity to be heard or otherwise have her submissions considered, Ms Wojciechowska did not take advantage of that opportunity.
The first and major reason Ms Wojciechowska did not take advantage of that opportunity was her view that the proceedings were null and void because of the Respondent's failure to serve the confidential material. Ms Wojciechowska was self-represented but she has extensive experience with Tribunal proceedings under the GIPA Act. She knew that that submission would put the hearing at risk but she chose not to make any express submission about it until the day of the hearing. She does not have a good reason for failing to do so.
The second reason Ms Wojciechowska did not take advantage of the opportunity to be heard was because the Respondent did not serve her with the open material by post in November 2023. I have found that the open material was not served until 23 January 2024, nine days before the hearing. Ms Wojciechowska said that the Respondent always provide instructions to its lawyers about the manner of service. While I am not satisfied that Ms Wojciechowska read the email offering service by post, she was aware that the Respondent had purported to serve her with the open material by email. Despite that awareness, she did not tell the Tribunal until the day of the hearing that she had not been served by post in November 2023.
I was not persuaded by her informal evidence that fear of criticism or an assumption that the Respondent knew that they should not communicate by email were sufficient reasons for Ms Wojciechowska not taking advantage of the opportunity to be heard. She knew that doing nothing would put the hearing at risk and waste the Respondent's and the Tribunal's resources. Once the time had come for her to file and serve her material, she should have contacted the Tribunal to advise that she could not do so because she had not yet received the Respondent's confidential material or the Respondent's open material by post. She does not have a good reason for failing to do so.
The Tribunal has not breached the hearing rule of procedural fairness and the proceedings are not null and void because of the manner in which the Respondent served or purported to serve Ms Wojciechowska with the open material.

[22]

Tribunal CCTV footage (Items 1-5)

The Respondent decided that the CCTV footage "is not held by the agency": GIPA Act, s 58(1)(b). A "decision that government information is not held by the agency" is an administratively reviewable decision: GIPA Act, s 80(e).
Section 53 sets out an agency's obligation to search for information. 53 Searches for information held by agency (1) The obligation of an agency to provide access to government information in response to an access application is limited to information held by the agency when the application is received. (2) An agency must undertake such reasonable searches as may be necessary to find any of the government information applied for that was held by the agency when the application was received. The agency's searches must be conducted using the most efficient means reasonably available to the agency. (3) The obligation of an agency to undertake reasonable searches extends to searches using any resources reasonably available to the agency including resources that facilitate the retrieval of information stored electronically. (4) An agency is not required to search for information in records held by the agency in an electronic backup system unless a record containing the information has been lost to the agency as a result of having been destroyed, transferred, or otherwise dealt with, in contravention of the State Records Act 1998 or contrary to the agency's established record management procedures. (5) An agency is not required to undertake any search for information that would require an unreasonable and substantial diversion of the agency's resources.
The Appeal Panel in Wojciechowska v Commissioner of Police [2020] NSWCATAP 173 held at [41] that: 41. . . . whether an agency has complied with the obligation imposed by s 53 of the GIPA Act is plainly a relevant factor in determining whether an "information is not held" decision is the "correct and preferable decision". …
At [43] the Appeal Panel made the following observations about the issues of fact which may arise in relation to a decision under s 58(1)(b) that the agency does not hold the information: In the context of a decision made under s 58(1)(b) of the GIPA Act, the issues of fact which an agency must establish on the balance of probabilities, will depend on the reasons given by the agency that it does not hold the requested information. If the stated reason is that the agency has searched for the information but is unable to find the requested information, a factual issue will be whether the agency has undertaken "such reasonable searches as may be necessary to find any of the government information applied for that was held by the agency when the application was received": s 53(2) of the GIPA Act. A further relevant issue may be whether material has emerged since the search was undertaken which suggests that the requested information exits and is held by the agency. Other relevant factual issues may include whether any search for information would require an unreasonable and substantial diversion of the agency's resources: s 53(5) of the GIPA Act.
At [44], the Appeal Panel provided the following summary of the steps the Tribunal should undertake when reviewing a decision that requested information is not held by the agency: (1) identify on the basis of the agency's reasons and the applicant's submissions, any relevant factual issues including those derived from s 53(1) - (5); (2) determine whether the agency has proved any relevant factual issues on the balance of probabilities; (3) consider any evidence which may have emerged since the agency made its decision, which might tend to prove that the requested information is held by the agency; (4) applying those findings, decide what the correct or preferable decision is; (5) affirm, set aside or vary the agency's decision: s 63(3) of the Administrative Decisions Review Act.
The Respondent relied on an affidavit of Scott Mayer, the Deputy Sheriff employed in the NSW Sheriff's Office. He has overall responsibility for requests made for CCTV footage by members of the public. In his affidavit of 21 November 2023, Mr Mayer states that the NSW Sheriff's Office operates a CCTV system using software supplied by a security technology company. Past CCTV footage can be viewed on specialised terminals available for that purpose.
Mr Mayer's evidence was that, as a general rule, CCTV footage of Tribunal proceedings is retained for approximately 28 days. The system automatically and continuously overwrites the oldest footage when the local storage is full. At paragraph 11 of his affidavit of Mr Mayer states: When new CCTV systems are established, they are designed to have sufficient local storage to retain at least 28 days of footage from all the cameras on site. The amount of local storage required depends on the number of cameras and their resolution. As CCTV cameras are added to and upgraded, the local storage may not correspond to exactly 28 days of footage. That is especially the case at large sites like John Maddison Tower with many cameras.
Ms Wojciechowska lodged her application on 2 August 2021 at 10.48 am. That was exactly 28 days after the footage sought in Item 1 was recorded. Despite making inquiries about the footage promptly, as detailed in Mr Mayer's affidavit, by the time the relevant officers searched for it on the afternoon of the 4 August 2021, the footage identified in Item 1 had been overwritten. The footage identified in Items 2-5 had been overwritten before Ms Wojciechowska made the access application.
I find on the basis of Mr Mayer's credible evidence that the Respondent has undertaken reasonable searches to find the CCTV footage identified in Items 1 - 5 and that the agency's searches were conducted using the most efficient means reasonably available. The searches were conducted promptly. Notwithstanding those efforts, I am satisfied that the items identified in 1 - 5 are not held by the agency.
I make the following order: The Respondent's decision that the government information identified in Items 1 to 5 is not held by the agency is affirmed.

[23]

Tribunal correspondence and documents (Items 6 - 14)

In Items 6-14, Ms Wojciechowska applied for access to information in relation to two Tribunal proceedings to which she was a party: Wojciechowska v Blue Mountains City Council (2019/234255) and Wojciechowska v Commissioner of Police (2019/142529). For the first matter, Ms Wojciechowska sought documents provided to the Blue Mountains City Council and its representatives and agents in July and August 2019 (Items 6 and 7) as well as documents containing the dates of those documents including logs, mail registers and email reports (Item 8). For the second matter, Ms Wojciechowska sought the documents containing the Tribunal listing details (including date, location, member name, room, parties, listing type, person listing) for the months of May to October 2019 (Items 9 - 14).
Although this information, and some other information sought by Ms Wojciechowska is held by the NSW Civil and Administrative Tribunal (NCAT), the Department of Communities and Justice is the correct respondent. NCAT is taken to be a 'subsidiary agency" of the Respondent, rather than a separate agency: GIPA Act, Sch 4, cl 6(1) and Sch 3 to the Government Information (Public Access) Regulation 2018.
The Respondent decided that the information identified in Items 6-14 was not a valid application because it was an application for "excluded information of the agency": GIPA Act, s 43. A decision that an application is not a valid application is an administratively reviewable decision: GIPA Act, s 80(a). At the hearing, the Respondent relied on legal submissions to support that conclusion.
Under s 43 of the GIPA Act, an access application cannot be made for excluded information. 43 Access application cannot be made for excluded information (1) An access application cannot be made to an agency for access to excluded information of the agency. Note - Information is excluded information of an agency if it relates to any function specified in Schedule 2 in relation to the agency. (2) An application for government information is not a valid access application to the extent that the application is made in contravention of this section.
In the definition section of Sch 4 to the GIPA Act, "excluded information of an agency specified in Schedule 2" means information that relates to any function specified in that Schedule in relation to the agency". Schedule 2 to the GIPA Act is headed "Excluded information of particular agencies". Under the sub-heading "Judicial and prosecutorial information" are the words "A court - judicial functions". "A court" is defined as including "a tribunal" and "a registry or other office of a court and the members of staff of that registry or other office". "Judicial functions in relation to a court, means such of the functions of the court as relate to the hearing or determination of proceedings before it . . .": GIPA Act, Sch 4, cl 1.
The effect of these provisions is that information which "relates to" such of the functions of the Tribunal that "relate to the hearing or determination of proceedings before it" will be excluded information of the Tribunal. The words "relates to" are "extremely wide" and only require the existence of a connection or association between two things: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [87] and Betzis v Commissioner of Police [2020] NSWCATAD 71 at [33]-[36].
The information as summarised above relates to two proceedings to which Ms Wojciechowska was a party. Information in documents provided to a respondent to one of those proceedings relates to the hearing and determination of those proceedings before the Tribunal. The Tribunal's listing details for the other proceedings for six separate months relates to the hearing and determination of those proceedings.
The Respondent conducted searches for the information as set out in the Open Bundle of material at Tab 5. The information was not produced to the Tribunal but I am satisfied that the information, as described in Items 6-14 of the first application, is excluded information and the access application is invalid. I make the following decision: The Respondent's decision that the application for government information identified in Items 6 to 14 is not a valid access application is affirmed.
I note that the Tribunal is part of the Respondent, so the claim in relation to the Tribunal's excluded information is being made by the agency whose excluded information it is, rather than by another agency: GIPA Act, cl 6(2) of Sch 1.
I also note the following information provided by the Executive Director and Principal Registrar of the Tribunal in the search certification signed on 13 August 2021: However, Ms Wojciechowska is a party to proceedings so she can make arrangements to inspect the files under NCAT Rule 42 . . . once she has paid the fees for retrieval of the file from GRR for the file 2019/0014259 and any other applicable fee (if any)
The reference to the file number should have been (2019/00142529).

[26]

Decision and issues (Item 15)

Mr McIntosh's evidence was that a list of search terms was formulated to identify the information described in Item 15. That search produced approximately 1.6GB of data. The data was manually reviewed and information which was not within the date range (7 January 2021 to 4 May 2021) was excluded. Similarly, information in a document that was not created by the Respondent was excluded.
The Respondent gave Ms Wojciechowska access to 364 pages containing information responsive to Item 15. Some of the information contained in those pages was redacted because it was considered to be subject to an overriding public interest against disclosure. The basis for that conclusion was that it contained personal information, other than the information of Ms Wojciechowska or of Mr Bolejko. (I note that Mr Bolejko consented to the Respondent releasing his personal information to Ms Wojciechowska.) Evidence in support of the decision to redact personal information is contained in paragraphs 28 of the affidavit of Michael McIntosh of 23 November 2023.
Three issues arise in relation to this decision. The first is whether information, other than the information that the Respondent searched for and produced to the Tribunal, is held by the agency. The second is whether certain redacted information is relevant to the information Ms Wojciechowska applied for. The third issue is whether there is an overriding public interest against disclosure of certain information because it contains personal information. The basis for deleting the second and third kinds of information is in s 74 of the GIPA Act: 74 Deletion of information from copy of record to be accessed An agency can delete information from a copy of a record to which access is to be provided in response to an access application (so as to provide access only to the other information that the record contains) either because the deleted information is not relevant to the information applied for or because (if the deleted information was applied for) the agency has decided to refuse to provide access to that information.

[29]

Is there an overriding public interest against disclosure of any information responsive to Item 15?

Under s 5 of the GIPA Act: There is a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure.
There is a general public interest in favour of the disclosure of government information: GIPA Act, s 12(1). While not limiting any other kinds of public interest considerations in favour of disclosure, the note to s 12 provides the following examples: 12 Public interest considerations in favour of disclosure Note - The following are examples of public interest considerations in favour of disclosure of information - (a) Disclosure of the information could reasonably be expected to promote open discussion of public affairs, enhance Government accountability or contribute to positive and informed debate on issues of public importance. (b) Disclosure of the information could reasonably be expected to inform the public about the operations of agencies and, in particular, their policies and practices for dealing with members of the public. (c) Disclosure of the information could reasonably be expected to ensure effective oversight of the expenditure of public funds. (d) The information is personal information of the person to whom it is to be disclosed. (e) Disclosure of the information could reasonably be expected to reveal or substantiate that an agency (or a member of an agency) has engaged in misconduct or negligent, improper or unlawful conduct.
Section 13 states what is meant by the phrase "overriding public interest against disclosure": There is an overriding public interest against disclosure of government information for the purposes of this Act if (and only if) there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure.
The public interest considerations against disclosure listed in the Table to s 14 are the only considerations that may be taken into account. A relevant consideration in this case relates to individual rights. Under cl 3(a) and (b) to the Table to s 14; Individual rights, judicial processes and natural justice There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects - (a) reveal an individual's personal information, (b) contravene an information protection principle under the Privacy and Personal Information Protection Act 1998 or a Health Privacy Principle under the Health Records and Information Privacy Act 2002,
Personal information is defined in cl 4 of Sch 4 to the GIPA Act to include information "about an individual (whether living or dead) whose identity is apparent or can reasonably be ascertained from the information or opinion": GIPA Act, s 4.
The Respondent decided that there was an overriding public interest against disclosing the redacted information marked ""s 14 cl. 3(a), s 14 cl 3(b)" because it contains personal information that was not the personal information of Ms Wojciechowska or of Mr Bolejko. Where the personal information of another individual appeared on a document, it was redacted.
The justification for doing so was that there is no public interest in favour of disclosing this information and its disclosure would unreasonably interfere with the privacy of the individuals concerned. Disclosure would also be contrary to the principle in s 18 of the Privacy and Personal Information Protection Act 1998 (the PPIP Act). 18 Limits on disclosure of personal information (1) A public sector agency that holds personal information must not disclose the information to a person (other than the individual to whom the information relates) or other body, whether or not such other person or body is a public sector agency, unless - (a) the disclosure is directly related to the purpose for which the information was collected, and the agency disclosing the information has no reason to believe that the individual concerned would object to the disclosure, or (b) the individual concerned is reasonably likely to have been aware, or has been made aware in accordance with section 10, that information of that kind is usually disclosed to that other person or body, or (c) the agency believes on reasonable grounds that the disclosure is necessary to prevent or lessen a serious and imminent threat to the life or health of the individual concerned or another person. (2) If personal information is disclosed in accordance with subsection (1) to a person or body that is a public sector agency, that agency must not use or disclose the information for a purpose other than the purpose for which the information was given to it.
I reviewed the confidential material and I am satisfied that the information marked "s 14 cl. 3(a), s 14 cl 3(b)" is personal information because it identifies a person or persons who has applied for information under the GIPA Act, other than Ms Wojciechowska and Mr Bolejko, and contains information about that person. As well as identifying the name of a person or persons, the redacted information contains signatures, dates of birth and credit card details. Disclosure of that information could reasonably be expected to reveal an individual's personal information.
There is a general public interest consideration in favour of the disclosure of government information. There are no other public interest considerations in favour of disclosing this information. The considerations against disclosure relate to a person's individual rights. Disclosure of the information could reasonably be expected to reveal an individual's personal information. Furthermore, disclosure of that information would contravene s 18 of the PPIP Act. On balance, there is an overriding public interest against disclosure.
I make the following order: The Respondent's decision to refuse to provide access to the government information marked "s 14 cl. 3(a), s 14 cl 3(b)" in response to the access application in Item 15, is affirmed.

[32]

CCTV footage from Tribunal hearing on 16 September 2021 (Item 1)

The information identified in Item 1 is the CCTV footage of proceedings in a Tribunal hearing room.
Mr Mayer is the Commander of Security, Intelligence and Risk Command and has overall responsibility for the security of Court and Tribunal premises. Applications for CCTV footage are made either by summonsing the footage or by applying under the GIPA Act. Mr Mayer's evidence was that the Sheriff's Office will act on either informal or formal requests to quarantine and save footage. He gives the example of the NSW Police Force advising that particular footage will be required for an investigation. In those circumstances the footage is saved pending a formal request for the footage to be made available.
The footage in Item 1 is of the entire hearing room and the people in that room including the Tribunal member. An AVL screen with the image of participants on the screen can also be seen. As Mr Mayer states in his affidavit, the camera is placed high in the corner above the bench. It shows the whole of the courtroom in clear detail. The camera angle provides a view of the Tribunal member entering and leaving the hearing room and sitting behind the bench. There is no audio recording associated with the CCTV footage.
After receiving a request from the Respondent for the CCTV footage described in Item 1, the footage was saved and a copy provided to the Respondent. On 18 October 2021, the Sheriff of NSW approved a letter to accompany the footage in response to Ms Wojciechowska's access application. The letter is said to reflect the policy of the Sheriff's Office that CCTV footage should ordinarily be provided by way of "view-only" access rather than "copy" access.
The Respondent's decision 23 November 2021 decision was to provide access to the information by way of inspection on MS Teams: GIPA Act, s 72(1)(a). That decision was based on a finding that providing a copy of the recording was a breach of copyright. Having regard to the reasons the Information Commissioner expressed about that decision, the Respondent acknowledges that that decision is not the "correct and preferable" decision. The Respondent now submits that the CCTV is "excluded information" and that Ms Wojciechowska's application for that information is not a valid access application: GIPA Act, s 43. Alternatively, the Respondent submits that there is on overriding public interest against providing the information in a form which would allow Ms Wojciechowska to disclose the information to others. However, if a condition is placed on how Ms Wojciechowska may exercise her right of access, there would no longer be an overriding public interest against disclosure.

[35]

Legal principles on "view only" access

Alternatively the Respondent submitted that Ms Wojciechowska's access should be on a "view-only" basis. The term "view only" access is not used in the GIPA Act. To understand the Respondent's submission, it is necessary to summarise the relevant provisions of the GIPA Act about the form of access.
An application may be determined in any of the ways listed in s 58 of the GIPA Act: 58 How applications are decided (1) An agency decides an access application for government information by - (a) deciding to provide access to the information, or (b) deciding that the information is not held by the agency, or (c) deciding that the information is already available to the applicant (see section 59), or (d) deciding to refuse to provide access to the information because there is an overriding public interest against disclosure of the information, or (e) deciding to refuse to deal with the application (see section 60), or (f) deciding to refuse to confirm or deny that information is held by the agency because there is an overriding public interest against disclosure of information confirming or denying that fact. Note - These decisions are reviewable under Part 5.
A decision to provide access under s 58(1)(a) or to refuse to provide access to information under s 58(1)(d) are reviewable by the Tribunal: GIPA Act, s 80(d). A decision to provide access to information in a particular way in response to an access application is also a reviewable decision as is a decision not to provide access in the way requested by the applicant: GIPA Act, s 80(i).
Section 72(1) lists the ways in which access to government information may be provided: 72 Forms of access (1) Access to government information in response to an access application may be provided in any of the following ways - (a) by providing a reasonable opportunity to inspect a record containing the information, (b) by providing a copy of a record containing the information, (c) by providing access to a record containing the information, together with such facilities as may be necessary to enable the information to be read, viewed or listened to (as appropriate to the kind of record concerned), (d) by providing a written transcript of the information in the case of information recorded in an audio record or recorded in shorthand or other encoded format.
Section 72(2) states the general rule that an agency must provide access in the way requested by the applicant but then lists four exceptions to that general rule. (2) The agency must provide access in the way requested by the applicant unless - (a) to do so would interfere unreasonably with the operations of the agency or would result in the agency incurring unreasonable additional costs, or (b) to do so would be detrimental to the proper preservation of the record, or (c) to do so would involve an infringement of copyright, or (d) there is an overriding public interest against disclosure of the information in the way requested by the applicant.
In this case, Ms Wojciechowska did not nominate a particular way in which she sought access to the information. That means that the Respondent did not have to provide access in a particular way and s 72(2) was not engaged.
Section 15(e) sets out certain principles to be applied when determining whether there is an overriding public interest against disclosure: A determination as to whether there is an overriding public interest against disclosure of government information is to be made in accordance with the following principles - : (e) In the case of disclosure in response to an access application, it is relevant to consider that disclosure cannot be made subject to any conditions on the use or disclosure of information.
Section 15(e) is subject to s 73 of the GIPA Act which provides that access is to be unconditional unless the circumstances in s 73(2) or (3) are met: 73 Access to be unconditional (1) An agency is not entitled to impose any conditions on the use or disclosure of information when the agency provides access to the information in response to an access application. (2) A condition may be imposed as to how a right of access may be exercised (such as a condition that prevents an applicant making notes from or taking a copy of a record that is made available for inspection) but only to avoid there being an overriding public interest against disclosure of the information. (3) A condition may be imposed that access to medical or psychiatric information will only be provided to a medical practitioner nominated by the applicant and not to the applicant personally.
When read together, these provisions mean that while there is a general principle that disclosure cannot be made subject to any conditions on the use or disclosure of information, an agency may impose a condition "as to how a right of access may be exercised" but only to avoid there being an overriding public interest against disclosure of the information. Section 73(3) is not relevant to the facts of this case.
Based on the legislative scheme and the Respondent's submissions, I understand the Respondent's case to be that despite there being an overriding public interest against disclosure of the information in Item 1, if access is given under s 72(1)(a) or s 72(1)(b) and conditions placed on how the right of access may be exercised, (including taking notes, making an image or copying the record) there will no longer be an overriding public interest against disclosure.

[36]

Issues and consideration

The questions to be resolved are: 1. Is there an overriding public interest against disclosure? 2. If so, is there no longer an overriding public interest against disclosure if access to the information is given in a particular form and/or if conditions are imposed on how the right of access may be exercised?
I have outlined the relevant provisions governing the determination of the question as to whether there is an overriding public interest against disclosure of government information. There is a general public interest in favour of disclosure. Disclosure of the CCTV footage could reasonably be expected to inform the public about the operations of the Tribunal, in particular, how the hearing room is configured and the movements of the Tribunal Member and employees of the Respondent during the hearing: GIPA Act, Note to s 12(2). But there is no issue of public affairs or public importance which would be promoted or enhanced if the footage was disclosed. The Tribunal is accountable for how it conducts a hearing because the hearing is recorded. The extra level of accountability in being able to see what the Member or employees of the Respondent are doing when conducting a hearing is minimal. The personal interest of Ms Wojciechowska is also minimal because she was present at the hearing, via AVL.
The three public interest considerations against disclosure on which the Respondent relies are: those in cl 6 to the Table to s 14 headed "Secrecy provisions"; those in cl 2(e) and (f) (endanger the security of, or prejudice any system or procedure for protecting, any place, property or vehicle, and facilitate the commission of a criminal act) and those in cl 3(a) (reveal a person's personal information). I address each of these considerations in turn below.
Clause 6 of the Table to s 14, is headed "Secrecy provisions": (1) There is a public interest consideration against disclosure of information if disclosure of the information by any person could (disregarding the operation of this Act) reasonably be expected to constitute a contravention of a provision of any other Act or statutory rule (of this or another State or of the Commonwealth) that prohibits the disclosure of information, whether or not the prohibition is subject to specified qualifications or exceptions. (2) The public interest consideration under this clause extends to consideration of the policy that underlies the prohibition against disclosure.
The Respondent relies on the "secrecy provision" in s 9B of the Court Security Act 2005: 9B Prohibition on unauthorised distribution of court recording (1) A person must not transmit or distribute a recording of sounds or images (or both) of court proceedings, including part of a recording, by any means. Maximum penalty - 200 penalty units or imprisonment for 12 months, or both. (2) Subsection (1) does not apply unless the person knows or suspects, or ought reasonably to know or suspect, that none of the following apply - (a) the transmission or distribution of the recording has been expressly approved by a judicial officer, (b) the transmission or distribution of the recording is for the purpose of transcribing court proceedings for the court, (c) the transmission or distribution of the recording occurred in any other circumstances prescribed by the regulations.
Section 11 of the GIPA Act overrides secrecy provisions in other legislation: This Act overrides a provision of any other Act or statutory rule that prohibits the disclosure of information (whether or not the prohibition is subject to specified qualifications or exceptions), other than a provision of a law listed in Schedule 1 as an overriding secrecy law.
The effect of these provisions is that even if disclosure would breach a secrecy provision, that fact must be weighed against the considerations in favour of disclosure.
Clause 6(2) permits the Tribunal to consider the policy that underlies the prohibition against disclosure of images of court proceedings. That policy was articulated by the Attorney-General in the Second Reading Speech for the Stronger Communities Legislation Amendment (Courts and Civil) Bill 2020: Schedule 1.2 to the bill will amend the Court Security Act 2005 to provide that transmitting or distributing a sound and/or video recording of court proceedings is an offence. It is currently an offence under section 9 of that Act to use a device to record sounds and images from a courtroom. Under section 9A it is an offence to transmit sounds or images of court proceedings. Neither of these offences apply in circumstances where the recording or transmission was authorised. This amendment provides that it is an offence to transmit or distribute a recording of court proceedings. The maximum penalty for the offence will be 200 penalty units or imprisonment for 12 months, or both, which is consistent with the existing penalties for the offences under sections 9 and 9A of the Act. This amendment would prohibit recordings of court proceedings being shared without authorisation even where the original recording of the proceedings was authorised - for example, for the purposes of transcription. The inappropriate distribution or sharing of video recordings, including on social media, may pose a risk to vulnerable witnesses and interfere with the administration of justice.
The Respondent highlighted the point made by the Attorney General in the last sentence quoted above. While there is no witnesses depicted giving evidence on the CCTV footage, Mr Mayer states that he is aware of other cases where access to CCTV was provided and it was subsequently distributed widely on the internet. It is a criminal offence to distribute a recording of sounds or images (or both) of court proceedings, unless, among other things, the communication has been expressly approved by a judicial officer. I am satisfied that disclosure of the CCTV footage to Ms Wojciechowska could reasonably be expected to constitute a contravention of s 9B of the Court Security Act 2005.
The evidence in support of there being an overriding public interest against disclosure on security grounds or to facilitate the commission of a crime, comes from Mr Mayer's affidavit. The CCTV shows the physical layout of the hearing room including: the location of entries and exists; the positions of the bar table and the bench; entry points to the bench from secure parts of the building and potential communication points in the case of emergencies such as duress alarms or fire alarms. According to Mr Mayer, that level of knowledge would permit a person who wishes to cause harm to a judicial officer to create and rehearse a detailed plan for doing so. That level of risk is said to be much greater than the knowledge a person could obtain from attending the Tribunal's premises or from viewing a hearing room on CCTV a single time.
I am not satisfied, based on Mr Mayer's evidence, that disclosure of the CCTV footage could reasonably be expected to endanger the security of, or prejudice any system or procedure for protecting the Tribunal premises. Nor am I satisfied that disclosure could reasonably be expected to facilitate the commission of a crime. The location of entries and exists; the positions of the bar table and the bench and entry points to the bench from secure parts of the building are all visible to a person who is physically present in the hearing room. A person could easily sketch the configuration of the hearing room when physically in the hearing room. Any communication points in the case of emergencies such as duress alarms or fire alarms are not visible in the CCTV footage.
Mr Mayer's third concern is that disclosure of the CCTV footage would disclose the personal information of people other than the applicant. The footage does not depict any members of the public physically in attendance because there were COVID-19 stay-at-home orders in force in Sydney at that time. However, two people who are apparently employees of the Respondent are present in the hearing room at various times. Their identity is apparent from the CCTV footage because they are depicted with sufficient clarity to identify them.
I accept Mr Mayer's evidence and find that disclosure of the footage could reasonably be expected to reveal an individual's personal information. The personal information is what the two employees of the Respondent were physically doing in the hearing room at the time.
The general public interest consideration in favour of disclosure should be given significant weight. However, the public interest considerations against disclosure based on the secrecy provisions and disclosure of personal information outweigh the considerations in favour of disclosure. There is an overriding public interest against disclosure.
However, if the form of access is by providing a reasonable opportunity to "inspect the record" (s 72(1)(a)) "together with such facilities as may be necessary to enable the information to be viewed" (s 72(1)(c)) and if a condition is imposed that prevents Ms Wojciechowska from making notes from or taking a copy of the record (s 73(2)), that will avoid there being an overriding public interest against disclosure of the information. The CCTV footage will not be at risk of being widely distributed on social media or otherwise.
I make the following order: The Respondent's decision in relation to Item 1 is set aside. The following decision is made in substitution for that decision: Ms Wojciechowska is to be given access to the information in Item 1. The form of access is by providing a reasonable opportunity to inspect a record containing the information, together with such facilities as may be necessary to enable the information to be viewed. A condition of access is that Ms Wojciechowska not make any record of the information including by taking notes, making an image or copying the record.

[37]

Employment records of 'Karen' (Item 2)

Item 2 sought "complete employment records for all persons named Karen and working for the Office of General Counsel in February 2020".
The first step is to determine whether the Respondent has proved any relevant factual matters on the balance of probabilities.
The Respondent interpreted this application to mean that Ms Wojciechowska was seeking employment information about a person whose surname she does not know. That is a reasonable assumption. I find, in accordance with Michael McIntosh's affidavit, that in February 2020, there was no Office of General Counsel within the Respondent's departmental structure at the time of the application. That Office was abolished on 1 July 2019. The functions performed by that office were transferred to the Department's Law Reform and Legal Services branch.
The Respondent wrote Ms Wojciechowska on 19 October 2021 and again on 28 October 2021 telling her that the Department did not have an "Office of General Counsel" within its structure at the relevant time and that legal services were provided through "Law Reform and Legal Services" branch. That correspondence did not result in Ms Wojciechowska amending, clarifying or refining her application.
The first time Ms Wojciechowska applied to the Respondent for information under the GIPA Act was on 7 January 2021. That was nearly a year after February 2020 which is the time Ms Wojciechowska identified as being when "Karen" was working for the Office of General Counsel. That fact led Mr McIntosh to come to the view that it was possible that Ms Wojciechowska may have intended to refer to an "Office of General Council" in a different agency, such as the NSW Police Force. It follows that even if Ms Wojciechowska had identified an administrative unit of the Respondent, it is not clear whether the "Karen" to whom she is referring is someone employed by the Respondent at all.
Because Ms Wojciechowska had not identified any part of the Department where "Karen" was working and which existed in February 2020, there was no person who could be identified. According to the Respondent, there are no records to search because no person answers the description given in the access application. The Respondent's decision was that "the information is not held by the agency": GIPA Act, s 58(1)(b).
The Information Commissioner's view was that Ms Wojciechowska's access application identified all persons named Karen and that a search for "Karen" could have been conducted.
The Respondent submitted that the real issue is not the place where searches should be conducted but the person about whom searches should be conducted. If that person cannot be identified, no searches can be commenced whether in "DCJ Legal" or elsewhere in the Department. The Respondent concluded that Ms Wojciechowska is applying for information about someone in particular, not any Departmental employee by the name of Karen.
An agency is only obliged to "undertake such reasonable searches as may be necessary to find any of the government information applied for that was held by the agency when the application was received": GIPA Act, s 53(2). The Respondent did not hold the information sought by Ms Wojciechowska because there was no Office of General Counsel within the Respondent's departmental structure in February 2020. Despite being advised of that fact, Ms Wojciechowska did not clarify or amend her application. I make the following order: The Respondent's decision that it does not hold the information sought in Item 2 is affirmed.

[38]

Employment records of Kyle Hudson (Items 3 - 5)

Items 3 to 5 sought employment information about Kyle Hudson a former employee of the Crown Solicitor's Office who acted in matters involving Ms Wojciechowska. Item 3 was for information about the "termination of employment details for Kyle Hudson for 2019". Item 4 sought "complete termination of employment details for Kyle Hudson" for 2021. Item 5 sought "complete documents submitted to Crown Solicitor's Office and/or Department of Communities and Justice in 2020 and/or 2021 in relation to recommencement/commencement of employment at the Crown Solicitor's Office by Kyle Hudson."
The Respondent interpreted the word "termination" to mean termination in an employment law sense, namely the involuntary cessation of employment. In support of that interpretation, the Respondent quoted s 69(4) of the Government Sector Employment Act 2013 (NSW) where the word "terminate" is used in contradistinction to the word "resign".
On 27 October 2021, Ms Beresford received a memorandum from Ms Kiri Mattes, Principal Solicitor at the Crown Solicitor's Office. That memorandum recorded the searches that had been undertaken by the Crown Solicitor's Office in relation to Items 3-5 and 11 of the second application. In relation to Items 3-5, the Crown Solicitor provided documents about Mr Hudson's secondment to the NSW Police Force in 2019 and documents about Mr Hudson's resignation in 2021. Ms Beresford formed the view that documents relating to Mr Hudson's secondment did not fall within the scope of Item 3 which only referred to "termination" of Mr Hudson's employment in 2019.
In accordance with the Respondent's evidence which was credible, I find that Mr Hudson's employment with the Crown Solicitor's Office and/or the Department was never terminated. In 2019 he was seconded to the NSW Police Force, but that is not a termination. No information was disclosed in response to Item 3 because Mr Hudson's employment was not terminated, in any sense, in 2019. Similarly, no information was disclosed in response to Item 5 because Mr Hudson neither "commenced" or "recommenced" his employment at that time. These items fail to identify any class of information that could possibly be held by the Crown Solicitor's Office because they are based on a mistaken assumption. I make the following order: The Respondent's decisions that it held no information in relation to Item 3 and Item 5 is affirmed.
I turn now to consider Item 4 (complete termination of employment details for Kyle Hudson" for 2021). In 2021 Mr Hudson resigned from the Crown Solicitor's Office. The Respondent gave Ms Wojciechowska access to some information about that resignation and deleted other information. The Respondent states that it has disclosed general information about the separation process such as policy documents, documents evidencing general processes and procedural correspondence.
The Respondent redacted the whole of Mr Hudson's letter of resignation which contains the address, the dates of resignation and cessation of duties and information about the time served by Mr Hudson at the Crown Solicitor's Office (page 594). Pages 596 to 601 are also wholly redacted. These pages are Mr Hudson's flex sheets.
There is a general public interest in favour of disclosing government information to which I give significant weight. There is also a public interest in favour of disclosure if disclosure of the information could reasonably be expected to enhance Government accountability. There is a strong public interest in holding the Government accountable for the process by which a person's employment is terminated. But disclosure of the content of Mr Hudson's letter of resignation and flex sheets could not reasonably be expected to enhance government accountability for that termination process. Disclosure of that information does not help a member of the public understand whether the process was conducted in accordance with government policy or the public's expectations.
The public interest considerations against disclosure are those listed in "s 14, cl 3(a) and cl 3(b)" (reveal an individual's personal information and contravene an information protection principle). The redacted information includes dates of service, Mr Hudson's letter of resignation, Mr Hudson's employee number, his contact details, sentiments expressed by him and his supervisor and flex sheet information. That information meets the definition of personal information in s 4 of the GIPA Act. I am satisfied that disclosure of the information marked "s 14 cl. 3(a), s 14 cl 3(b)" would reveal an individual's personal information. Furthermore, disclosure of that information would contravene s 18 of the PPIP Act.
In the circumstances of this case, there is a general public interest in favour of disclosure but no specific considerations in favour. There is a strong public interest against disclosing Mr Hudson's personal information about his resignation. The public interest considerations against disclosure outweigh the public considerations in favour of disclosure. On balance there is an overriding public interest against disclosure.
I make the following order: The Respondent's decision to refuse to provide access to the government information in Item 4 marked "s 14 cl. 3(a), s 14 cl 3(b)" is affirmed.

[41]

Evidence and findings

Mr O'Young is the Acting Manager of the Appointment Services Team within the Law Reform and Legal Services Division of the Respondent. At [8] to [20] of his affidavit he explains how the recruitment for the position of Deputy President and Division Head of the Tribunal's Guardianship Division was conducted. He has relied on his own knowledge and recollections of that process and, where necessary, has reviewed relevant documents from the files of the Appointment Services Team. Mr O'Young does not have personal knowledge of how the internal recruitment process was then undertaken but has been provided with information by Ms McGrath, Senior Appointments Officer in the Appointments Services Team, who has personal knowledge of some matters.
The role was advertised in the Sydney Morning Herald and by notice on the relevant NSW Government websites.
Mr O'Young stated that in the initial phases of the recruitment process, the Recruitment Unit used SAP (Systems Applications and Products) SuccessFactors for the purpose of collecting applicants' information. SuccessFactors is an online recruitment and human resources management platform used by the Respondent to initiate and formalise internal and external recruitment processes. SuccessFactors may be accessed by applicants directly via a link provided in the advertisement. Ms Britton's application consisted of a cover letter, a curriculum vitae and a completed online application form which contains her basic personal information and qualifications. The documents provided by Ms Britton are retained in the Success Factors system.
Mr O'Young was informed by Ms McGrath that the Appointment Committee then undertook an internal recruitment process. The Appointments Services Team was not engaged to assist with the internal process. The Appointments Services Team was informed that the Attorney General had determined that the President of the Tribunal, the Honourable Justice Lea Armstrong, would chair the Appointment Committee and provide advice to him on the Appointment Committee outcomes.
After the applications closed, they were downloaded from SuccessFactors by either the Recruitment Unit or the Appointments Services Team and provided to the Appointment Committee for their review. The Appointment Committee then undertook an internal recruitment process.
At the conclusion of the internal process, Justice Armstrong wrote to the Attorney General to advise him of the recommendations of the Appointment Committee. Mr O'Young has reviewed a copy of that letter. The letter lists the candidates who had been selected for interview. That list is the "shortlist" referred to at Item 7. Justice Armstrong also stated in that letter that the interviews were conducted on 18 August 2021.
Following the Attorney-General's initial consideration of the Appointment Committee's recommendations, the Appointment Services Team prepared a formal brief to the Attorney General for him to make a decision about the Division Head recruitment. The brief contained a draft Executive Council Minute, a Commission for signature, a Cabinet Board Diversity Form and Cabinet speaking points. Once considered by the Attorney General, Mr O'Young stated that these documents are characterised as draft Cabinet and Executive Council papers. He stated that the brief also contained several letters to be sent following the finalisation of the approval process including to Justice Armstrong and to the successful candidate.
The next step in the process was consideration by Cabinet and then by the Executive Council. At the 29 September 2021 meeting of the Executive Council, Ms Britton was appointed to the positions of Deputy President of the Tribunal and Division Head of the Guardianship Division, for a term of 5 years. On 11 October 2021, the Attorney General wrote to the President of the Tribunal to inform her of the decision of her Excellency the Governor, with the advice of the Executive Council, to appoint Ms Britton. A copy of that letter was attached to Mr O'Young's affidavit.
At [21] Mr O'Young lists the following categories of information that are held by the Appointment Services Team of the Respondent and are responsive to Ms Wojciechowska's application: 1. A complete list of applicants for the position, whose names are recorded in SuccessFactors. 2. A shortlist of applicants for the position, being the candidates selected for interview by the Appointment Committee, whose names are recorded in the letter Justice Armstrong wrote to the Attorney General to advise him of the recommendations of the Appointment Committee. 3. The complete application made by Ms Britton, as was provided to the Appointment Committee, which is stored on the SuccessFactors platform.
As well as Mr O'Young's affidavit, relevant material includes the Respondent's decision and the Schedule of documents prepared pursuant to an order of the Tribunal made on 30 May 2022 (the Schedule). The Schedule lists two documents identified as "Tab to Briefing Note to Attorney General". The first tab is described as being responsive to Items 6, 7, 8 and 10. The second tab is described as being responsive to Item 9. Both are recorded as being "withheld in full" based on the conclusive presumption against disclosure in Sch 1, cl 2 of the GIPA Act.
While there was no specific evidence about the content of these tabs, I can infer from the Schedule that the first tab is Justice Armstrong's letter to the Attorney General and is responsive to Items 7 (shortlist) and 8 (the date of interviews). In its submissions the Respondent states that the information sought, particularly the shortlist of applicants (Item 7), tends to reveal the content of the Attorney General's recommendation to Cabinet. In oral submissions the Respondent stated that if Justice Armstrong's letter to the Attorney General is disclosed, it is liable to reveal the position that the Attorney General took to Cabinet and therefore impair the sanctity of the Cabinet room deliberations.
The second tab is described as being responsive to Item 9. Again, there was no specific evidence about the nature of this document, but I can infer from the Schedule that it contains documents provided by Ms Britton in relation to her application for the position. The Respondent has disclosed that the application consisted of a cover letter, a CV and a completed online form containing Ms Britton's basic personal information and qualifications.
Mr O'Young's evidence is comprehensive and credible. The process he has outlined is the process that was followed in this case and the information to which he has referred is contained in the documents he has identified.

[45]

What is the correct and preferable decision in relation to Item 8?

The Respondent initially treated Item 8 as being invalid. That items was for " . . documents showing dates of all 2021 interviews conducted for the position of Deputy President and Head of NCAT's Guardianship Division". According to the Respondent it is not clear how searches could have been carried out because it would be impossible to search the Department's systems for reference to a date without turning up many thousands of irrelevant documents. However, the Respondent did not decide that providing access would represent an unreasonable and substantial diversion of resources. In those circumstances, at paragraph 16 of his affidavit, Mr O'Young discloses that the interviews were conducted on 18 August 2021. He states that that information is contained in a letter Justice Armstrong wrote to the Attorney General to advise him of the recommendations of the Appointment Committee.
The Respondent invites Ms Wojciechowska to withdraw so much of the administrative review proceeding that concerns that part of the decision.
Ms Wojciechowska has not withdrawn Item 8 of her application. I find, in accordance with Mr O'Young's evidence, that information responsive to Item 8 is contained in a letter Justice Armstrong wrote to the Attorney General. The date of that letter is not mentioned in the evidence. The Respondent has impliedly decided that there is no overriding public interest against disclosing information recording the date of the interviews. That is the correct decision. Ms Wojciechowska has been provided informally with that information but that is not a sufficient response to her application for that information.
Pursuant to s 72(1)(b) of the GIPA Act, copy access should be given to that part of the letter from Justice Armstrong to the Attorney General which discloses the date of all 2021 interviews conducted for the position of Deputy President and Head of NCAT's Guardianship Division. The formal parts of the letter including the address, dates, salutation and sign off need not be redacted.
The remaining information in that letter, apart from the shortlist of applicants, should be redacted because it is not relevant to the information applied for: GIPA Act, s 74. For the reasons I give below, the short list of applicants should be redacted because there is an overriding public interest against disclosure of that information.
I make the following order: The Respondent's decision in relation to Item 8 is set aside. In substitution for that decision, the following decision is made: Access is given to a copy of the information in the letter from Justice Armstrong to the Attorney General referred to in paragraph 16 of the affidavit of James O'Young dated 21 November 2023 which discloses the date of all 2021 interviews conducted for the position of Deputy President and Head of NCAT's Guardianship Division. Access is refused to the remainder of the information in that letter apart from the formal parts of the letter including the address, the date, the salutation and the sign off.

[46]

Is the Respondent's implied decision that no other information is held in relation to Item 10 the correct and preferable decision? (No)

I am satisfied on the basis of the evidence that the information identified as being responsive to Item 6 - 10 is the only information held by the Appointment Services Team within the Law Reform and Legal Services Division of the Respondent.
However, I am not satisfied that that is the case in relation to information held by NCAT. This issue arises because of the Respondent's evidence and submissions in relation to Item 10. Item 9 requests " . . complete documents provided by Anne Britton for the position of Deputy President and Head of NCAT's Guardianship Division." Item 10 is different. It requests " . . . documents provided to the NCAT in relation to the application of Anne Britton for the position of Deputy President and Head of NCAT's Guardianship Division." The Respondent submits that the information provided in response to Item 9 is also a complete response to the information requested in Item 10. The Schedule records that the document that I have inferred is Justice Armstrong's letter to the Attorney General is responsive to Item 10.
I have set out the relevant principles when determining whether an implied decision that information is not held by an agency is the correct and preferable decision.
The Respondent has not identified the basis for the implied decision that it does not hold any information responsive to Item 10. The information identified in Item 10 would include information provided to NCAT by referees or anyone else commenting on or referring to Ms Britton's application. NCAT did not conduct any searches for that information because it considered that there was a conclusive presumption against disclosure of that information. If any information of that kind exists it will be in an NCAT record.
I am not satisfied that the implied decision that the Respondent does not hold information responsive to Item 10 is the correct and preferable decision. As only the Respondent can conduct searches for that information, this aspect of the decision should be remitted to the Respondent to conduct reasonable searches. If information responsive to Item 10 is identified, the Respondent must make a decision about access.
I make the following order: Pursuant to s 65(1) of the Administrative Decisions Review Act 1997, the Respondent's implied decision that it does not hold information responsive to Item 10 is remitted to the Respondent for reconsideration in accordance with these reasons.
The effect of this decision is to preserve Ms Wojciechowska's right to proceed with the application for review in relation to any new decision about Item 10 or to withdraw the application: Administrative Decisions Review Act 1997, s 65(3).

[48]

Prejudice collective Ministerial responsibility

Under cl 1(a) and (b) to the Table to s 14 of the GIPA Act: There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects (whether in a particular case or generally) - (a) prejudice collective Ministerial responsibility, (b) prejudice Ministerial responsibility to Parliament,
Paragraph (b) relates to individual Ministers rather than to Ministers in Cabinet. The Respondent provided no separate evidence or submissions as to how disclosure could reasonably be expected to prejudice Ministerial responsibility to parliament as distinct from collective Ministerial responsibility: GIPA Act, s 14, cl 1(b). In the absence that material I have not considered this consideration against disclosure.
The Respondent concedes that the information sought does not come within the definition of Cabinet information or Executive Council information for which there is a conclusively presumption against disclosure: GIPA Act, Sch 1, cl 2 and 3. That is said to be the case because they do not fulfil the strict purposive definitions contained in those clauses.
The inclusion of cl 1(a) of the Table necessarily contemplates that there will be information which, while not Cabinet or Executive Council information as described in Sch 1, cl 2, could reasonably be expected to prejudice collective Ministerial responsibility: McKay v Transport for NSW [2017] NSWCATAD 212 at [77].
The Governor must make the appointment of a Division Head of the Tribunal: NCAT Act, s 14. In accordance with the ordinary constitutional conventions, those decisions are taken by the Governor on the advice of the Executive Council. It is a matter of public record that the ultimate decision of the Governor in Council was to appoint Ms Britton to the dual offices of Deputy President and Division Head of the Guardianship Division.
The Respondent submitted that the information attached to the Briefing Note, particularly the shortlist of applicants contained in Justice Armstrong's letter, "tends to reveal the content of the Attorney General's recommendations to Cabinet". Disclosure would prejudice the ability of Cabinet members to speak freely in support of, or against, particular outcomes. For that reason, disclosure is liable to undermine collective Ministerial responsibility. According to the Respondent, that consideration should be given significant weight because of its centrality to the State's constitutional system of government.
This submission uses similar words to those in Sch 1, cl 2(1)(e). There is a conclusive presumption against disclosure of information contained in any of the following documents: A document prepared before or after Cabinet deliberation or decision on a matter that reveals or tends to reveal the position that a particular Minister has taken, is taking, will take, is considering taking, or has been recommended to take, on the matter in Cabinet. (Emphasis added.)
Justice Armstrong's letter was prepared before Cabinet had made a decision about who to appoint as Deputy President and Head of the Guardianship Division. Ms Wojciechowska has not applied for information about the actual recommendation that Justice Armstrong made to the Attorney General, but the shortlist of applicants interviewed "tends to reveal" the position that the Attorney General has been recommended to take on the matter. That is because it can be assumed that the actual recommendation was to appoint from among the people on the shortlist.
For the following reasons, disclosure of that information could reasonably be expected to prejudice collective Ministerial responsibility.
The concept of collective ministerial responsibility (in the context of the Cabinet documents exemption in Schedule 1) was explained in the following way in Cianfrano v Department of Commerce (NSW) [2005] NSWADT 282 at [57]: This exemption finds its justification in the primacy of Cabinet in the Westminster system of democratic government. It preserves the constitutional convention of collective ministerial responsibility. It seeks to ensure that what is said in Cabinet remains in Cabinet. As with any committee process, there will often be a range of views and a wide range of material canvassed before a final decision is reached. Under the Westminster system all Ministers are bound by the final decision, and must speak with one voice in relation to it. The same is true of other decisions taken on the way to the final decision. These principles are well-known, and they find their expression in such terms as "Cabinet solidarity".
Cabinet relies on the advice and information it receives from Ministers, from government officers and, on occasions, from judicial officers to make decisions. The notion of collective Ministerial responsibility recognises that it is central to the Westminster system of democratic government that the recommendations and other information Cabinet and its Ministers receive from those sources remains confidential. Ministers in Cabinet must be free to have candid discussions about the decisions they make. The shortlist of applicants is information in a document prepared before a Cabinet deliberation or decision on a matter that reveals or tends to reveal the position that a particular Minister has been recommended to take on the matter in Cabinet. Disclosure of that information could reasonably be expected to prejudice collective Ministerial responsibility. That is a strong consideration against disclosure of the information comprising the shortlist of applicants in Justice Armstrong's letter.
I am not satisfied that Ms Britton's application falls into the same category as the shortlist of applicants. It can be implied, based on the Respondent's response to Ms Wojciechowska's application, that information relating to that application was provided in a tab to the Briefing Note. But that information does not contain any advice or recommendations and could not reasonably be expected to prejudice collective Ministerial responsibility.

[49]

Information provided to an agency in confidence

Under cl 1(g) to the Table to s 14: There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects (whether in a particular case or generally) - (g) found an action against an agency for breach of confidence or otherwise result in the disclosure of information provided to an agency in confidence
This consideration has two limbs. Either disclosure could reasonably be expected to "found an action for breach of confidence" or disclosure could reasonably be expected to result in disclosure of information provided to an agency "in confidence". The Respondent relied on both limbs.
In Public Service Association and Professional Officers Association, Amalgamated Union of NSW v Premier's Department [2002] NSWADT 277 at [51] - [53] the Tribunal set out the five elements of an equitable action for breach of confidence (quoting Re B and Brisbane North Regional Health Authority (1993) 1 QAR 279): . . . first, the information must be capable of being specifically identifiable as information which is secret rather than generally available; second, the subject matter of the obligation of confidence must not be trivial or useless or generally known; third, the information must have been communicated in circumstances such as to fix the recipient with an equitable obligation not to use the information in an unauthorised way; four, it must be established that the disclosure of the information would constitute an unauthorised disclosure; and, five, it must be established that the giver of the information would suffer a detriment, not necessarily pecuniary, such as loss of privacy or embarrassment.
The Respondent has not addressed each of these elements in their evidence or submissions. I am not satisfied that the Respondent has discharged its onus of proving that disclosure could reasonably be expected to found an action for breach of confidence.
The alternative basis under cl 1(g) is that disclosure could reasonably be expected to result in disclosure of information provided to an agency "in confidence". The words "in confidence" should be given their ordinary English meaning when understood in context. The words "in confidence" are defined in the Macquarie Dictionary https://app.macquariedictionary.com.au/?search_word_type=dictionary&word=in%20confidence to mean: 7. in confidence, as a secret or private matter, not to be divulged to others: I told him in confidence.
Based on this definition, to be provided "in confidence" the information must be secret or private rather than generally available. Secondly, the information must be provided to the recipient on the understanding that it will not be divulged to others. Even if the information has not expressly been provided to an agency in confidence, that fact can be inferred from the circumstances in which it was provided: Australians for Sustainable Development Inc v Barangaroo Delivery Authority [2013] NSWADT 252 at [68].
The Respondent's submissions rely on the Tribunal inferring that the information is confidential information from the nature of the information and from the circumstances of the case. The Respondent submitted that job applications are made by applicants in confidence. Both the fact of having made a particular application and the contents of an application may, for various reasons, be matters which candidates wish to keep to themselves. Reasons may relate to their existing employment or simply because they desire to keep their affairs private. That expectation of confidentiality is said to be closely related to the expectations members of the public have about their personal information being kept private when it is provided to government.
I note that the hard copy of the advertisement filed as an attachment to Mr O'Young's affidavit does not contain a statement that applications will be treated confidentially or any other reference to the disclosure or publication of the applications. However, the test under cl 1(g) is whether the information was provided in confidence.
No evidence is needed to draw the inference that when each of the applicants applied for the positions, that information (their name) was a private matter. It was provided to the recipient on the understanding that it would not be divulged to anyone not involved in the selection process. That reasoning also applies to the names on the short list which is a sub-set of applicants.
Ms Britton's cover letter and online application were also provided "in confidence". They contain private information about Ms Britton's suitability to be appointed to the positions. It can readily be inferred that that information was provided to the Respondent on the understanding that it would not be divulged to anyone who was not involved in the selection process. Ms Britton's CV is in a different category. The information in a CV is not "secret" or "private". Information of that kind is often more generally available.
There is a public interest against disclosure of the names of the applicants, including the names of the candidates on the shortlist and of the content of Ms Britton's application, apart from her CV, under cl 1(g) to the Table to s 14.

[50]

Exercise of agency's functions

Under cl 1(d) to the Table to s 14: There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects (whether in a particular case or generally) - (d) prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency's functions,
According to the Respondent, it is reasonable to assume that at least some potential applicants to Tribunal positions would be deterred from applying if it became known that their names as applicants might be disclosed in answer to an access application. The effect of the release of that information would be to narrow the pool of potential applicants to fill the roles of Tribunal members. That, in turn, would have the tendency to reduce the quality of the candidates being appointed and thus the effective exercise of the Tribunal's functions. The Respondent accepts that the overall effect may be small but maintains that it is nevertheless significant.
I am not satisfied that disclosure of the confidential information "could reasonably be expected" to prejudice the supply to the Respondent of that information. There must be "real and substantive grounds supporting an opinion that disclosure could reasonably be expected to have that effect": Newcastle City Council v Newcastle East Residents Action Group [2018] NSWCATAP 245 at [59]. The grounds articulated by the Respondent are not substantive. The public interest consideration against disclosure in cl 1(d) to the Table to s 14 is not applicable.
Under cl 1(f) to the Table to s 14: There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects (whether in a particular case or generally) - (f) prejudice the effective exercise by an agency of the agency's functions,
As with cl 1(d) I am not satisfied that disclosure of the information "could reasonably be expected" to prejudice the effective exercise of the Respondent's functions. The public interest consideration against disclosure in cl 1(f) to the Table to s 14 is not applicable.

[52]

Is there an overriding public interest against disclosure?

I have set out the public interest considerations in favour of disclosure above and concluded that there is a general public interest in disclosing the information. I give that consideration significant weight.
The public interest considerations against disclosing the shortlist of candidates is that it could reasonably be expected to prejudice collective Ministerial responsibility, disclose information provided in confidence and reveal an individual's personal information. The strength of those considerations and the combined effect of disclosure on responsible and effective government and on a person's individual rights, mean that those considerations outweigh the significant general public interest consideration in favour of disclosure.
Disclosure of the names of the applicants and the content of Ms Britton's application could not reasonably be expected to prejudice collective Ministerial responsibility. However, disclosure of the names of the applicants and the content of Ms Britton's application, apart from her CV, will affect responsible and effective government because it will disclose information provided in confidence. Disclosure of that information will also reveal an individual's personal information. While not as strong as the considerations against disclosing the shortlist, the strength of these considerations and the combined effect of disclosure on responsible and effective government and on a person's individual rights, outweigh the significant general consideration in favour of disclosure.
Ms Britton's CV contains her personal information. That is the only consideration against disclosure. Before giving access to that information the Respondent is required to take such steps as are reasonably practicable to consult with Ms Britton: GIPA Act, s 54. Ms Britton may reasonably be expected to have concerns about the disclosure of the information. Those concerns may reasonably be expected to be relevant to the question of whether there is a public interest consideration against disclosure of the information.
I make the following orders: The Respondent's decision in relation to Items 6, 7 and 9 (apart from Ms Britton's CV) is set aside. The following decision is made in substitution for that decision: Access to the information is refused because there is an overriding public interest against disclosure. Pursuant to s 65(1) of the Administrative Decisions Review Act 1997, the Respondent's decision not to give access to Ms Britton's CV is remitted to the Respondent for reconsideration in accordance with these reasons.
The effect of this decision is to preserve the rights of Ms Wojciechowska to proceed with the application for review in relation to any new decision about Ms Britton's CV or to withdraw the application: Administrative Decisions Review Act 1997, s 65(4).

[53]

Notes of case conference (Item 11)

Item 11 is for ". . . complete copies of all unedited, unredacted and complete notes made by any employee of the Crown Solicitor's Office . . . in connection with . . . the case conference held on 11 January 2021 in Wojciechowska v Commissioner of Police (NCAT no 2020/00333837)." The Crown Solicitor acted for the Commissioner of Police in those proceedings.
One document was lodged confidentially with the Tribunal in response to this item. The Respondent consulted with the NSW Police Force about this document pursuant to its obligations under s 54 of the GIPA Act.
The Respondent claims legal professional privilege over all the information in this document. Under Sch 1, clause 5 of the GIPA Act it is to be conclusively presumed that there is an overriding public interest against disclosure of certain information: 5 Legal professional privilege (1) It is to be conclusively presumed that there is an overriding public interest against disclosure of information that would be privileged from production in legal proceedings on the ground of client legal privilege (legal professional privilege), unless the person in whose favour the privilege exists has waived the privilege. (2) If an access application is made to an agency in whose favour legal professional privilege exists in all or some of the government information to which access is sought, the agency is required to consider whether it would be appropriate for the agency to waive that privilege before the agency refuses to provide access to government information on the basis of this clause. (3) A decision that an agency makes under subclause (2) is not a reviewable decision under Part 5.
Ms Wojciechowska submitted orally at the hearing that Legal Profession Privilege had been waived because "they" relied on its content in proceedings. No evidence was provided for that assertion.
The Respondent provided evidence of its communication with the NSW Police Force about the disclosure of this document. Their submission was that the NSW Police Force declined to waive privilege. That is apparent from p 577 and 578 of the Respondent's open bundle of material, namely a letter from NSW Police Force to the Respondent dated 16 November 2021. In that letter, the NSW Police Force advised that they objected to the disclosure of the document on the basis of legal professional privilege and that privilege would not be waived.
The following elements of legal professional privilege are derived from s 118 and 119 of the Evidence Act 1995: 1. the existence of a client and lawyer relationship; 2. the confidential nature of the communication or document; and 3. the communication or document was brought into existence for the dominant purpose of either: 1. enabling the client to obtain, or the lawyer to give legal advice or provide legal services, or 2. the client being provided with legal services relating to existing or anticipated litigation.
I have reviewed the content of the document. The information it contains was prepared by the NSW Police Force's legal representative (the Crown Solicitor's Office) in connection with legal proceedings. I am satisfied that there exists a client and lawyer relationship between the NSW Police Force and the Crown Solicitor's Office. The information is confidential in nature. The information is a communication between a solicitor and a client for the dominant purpose of the solicitor providing legal services in relation to existing litigation in the Tribunal. There is no evidence that privilege has been waived.
I make the following order: The Respondent's decision to refuse to provide access to the information in Item 11 because there is an overriding public interest against disclosure of the information is affirmed.

[57]

Obligations when application regarded as invalid

When an agency receives an application for access to government information, the agency is to decide whether the application is a valid application and notify the applicant accordingly: GIPA Act, s 51. Where an access application is determined to be invalid, the obligations in s 52 arise. I have only reproduced those parts of the provisions that are relevant to the facts of this case: 52 Agency assistance with invalid applications (1) The notification of an agency's decision that an application is not a valid access application must - (a) include a statement of the reason why the application is not a valid access application (including reference to the relevant provisions of this Act), and . . . (c) if a reason is failure to provide required information, invite the applicant to provide the information, and (d) notify the applicant of the right of review under Part 5 that applies in relation to a decision that an application is not a valid access application. (2) The application becomes a valid access application if the applicant pays the required fee or provides the required information (as appropriate), and is then deemed to have been made when the fee or information was received by the agency. (3) An agency must provide advice and assistance, so far as it would be reasonable to expect the agency to do so, to assist an applicant to provide such information as may be necessary to enable the applicant to make a valid access application. . . .
On 2 March 2022 the Respondent wrote to Ms Wojciechowska conveying the decision and identifying the parts of the application where further information was required before the application could be regarded as valid. As well as those categories, in written submission the Respondent identified other parts of Ms Wojciechowska's application that were said to be invalid. The Respondent now relies only on Items 9-14; 15 -19; 21 and 25 as having insufficient information as is reasonably necessary to enable the government information applied for to be identified.
Ms Wojciechowska responded on 24 March 2022 stating that the decision that the application was invalid was "unlawful". However, Ms Wojciechowska did respond to what she characterised as an "informal requests for refinement". On 29 April 2022, Ms Wojciechowska sought administrative review of the Respondent's invalidity decision. On the same day, but before the Respondent had received notice that Ms Wojciechowska had lodged the application, the Respondent replied to her letter of 24 March 2022.

[59]

Job application documents (Items 9 - 14)

Items 9, 10, 11, 12, 13 and 14 sought "job application documents" and "application documents" about a number of people identified by name. For example, Item 9 sought: Complete, unredacted and otherwise unedited copies of all complete, unredacted and otherwise unedited job application documents (including but not limited to resumes, curricula vitae, applications, cover letters, role/s applied for, references etc) in relation to James Howard.
Items 10, 11, 12, 13 and 14 sought the same information in relation to Christine Skinner, Michelle Bechini, Jason Day, Michael McTegg and Joseph Karam. Item 12 which relates to Jason Day merely sought "application documents", not "job application documents".
The Respondent sought information about the particular agencies from whom information was sought, the time period in which information was sought and clarification of what was meant by "job application documents" or "application documents". Ms Wojciechowska gave the following explanation as to what those terms mean: All information in the job application documents (including but not limited to the information in the layout)' and 'all the information in the application documents (including but not limited to the information in the layout)'
In the letter of 24 March 2022, Ms Wojciechowska amended her application by specifying a date on or after which such an application was submitted. For example, for Item 9, Ms Wojciechowska requested: Complete, unredacted and otherwise unedited copies of all complete, unredacted and otherwise unedited job application documents (including but not limited to resumes, curricula vitae, applications, cover letters, role/s applied for, references etc) in relation to James Howard submitted or created, received on or after 01.01.2013.
Ms Wojciechowska also included the full name and position of the person including the agency in which that person was employed on a specified date.
Mr McIntosh's evidence was that the terms "job application documents" and "application documents" are ambiguous and do not clearly identify the information sought by the application.
The Respondent noted that the GIPA Act provides for rights to access government information meaning information contained in a record held by the Department, not simply the records themselves. The Respondent submitted that each of the requests for clarification was reasonable, having regard to the prolix and obscure way in which the information was identified. In circumstances where each of the items was related to Ms Wojciechowska's own dealings with the Department, it was appropriate to ask her to identify as much as she knew about the categories of information she sought.
On 24 March 2022 Ms Wojciechowski described what she meant by "job application documents". She means "resumes, curricula vitae, applications, cover letters, role/s applied for, references etc", that is, all the information contained in an application for a job by the nominated person. She describes the "application documents" in Item 12 in the same way. The application is not vague or ambiguous. I assume when Ms Wojciechowska requests "application documents" in Item 12, she means "job application documents". Those terms are not vague or ambiguous.
I do not know what Ms Wojciechowska means by the "information in the layout" but, based on her description of the information for Items 9 to 14 in her letter of 24 March 2022, there is such information as is reasonably necessary to enable the government information applied for to be identified.

[60]

ROPs entered in court proceedings - Items 15 - 19

Items 15 - 19 sought information about "ROPs entered" in various Local Court, District Court and Tribunal proceedings to which Ms Wojciechowski or Mr Bolejko was a party. Items 15 seeks: Complete, unredacted and otherwise unedited copies of complete, unredacted and otherwise unedited texts of all complete, unredacted and otherwise unedited ROPs entered in Wojciechowska v Commissioner of Police, NSW Police Force (Local Court number 2021/102332) including but not limited to those entered online.
Items 16, 17, 18 and 19 sought similar information about other proceedings. Mr McIntosh's evidence was that the Respondent asked Ms Wojciechowska to clarify the meaning of the acronym. She said she did not know but that the Respondent knows and that she copied the term from documents provided by the Respondent. Ms Beresford then wrote to Ms Wojciechowska saying that the acronym is an abbreviation for multiple terms familiar to the Respondent including Restriction of Privileges, Rules of Procedure and Record of Proceedings. Ms Beresford also asked Ms Wojciechowska to provide the contextual information to ascertain the meaning of that term, such as a copy of the document from which the applicant copied the term or the agency from which the document containing the terms originated.
In response to the Respondent's request to provide further information about what she means by ROPs, Ms Wojciechowska requested, in the 24 March 2022 letter, that she be "provided with the list of all the agencies holding any document in relation to Wojciechowska v Commissioner of Police, NSW Police Force (Local Court number: 2021/1023320 and Bolejko v Commissioner of Police, New South Wales Police Force (Local Court number: 2021/00098972) so that she can make that "refinement". She stated that, due to lack of information, she is unable to do so.
Ms Wojciechowska may make an application under the GIPA Act for the information she has identified, or the agency may provide that information informally: GIPA Act, s 8. But the preliminary issue I have to determine is whether the information Ms Wojciechowska has provided in Items 15 - 19, includes such information as is reasonably necessary to enable the government information applied for to be identified. I find, in accordance with Mr McIntosh's evidence, that the Respondent is unable to identify the meaning of the acronym ROP without more contextual information. Objectively, the access application does not include such information as is reasonably necessary to enable the government information applied for to be identified.
In the written submissions the Respondent also submitted that the request for information in Items 21 and 25 are invalid because they do not comply with the "invalidity requirement" in s 41(1)(e).

[63]

Orders 1. In relation to Ms Wojciechowska's first access application I make the following orders: 1. The Respondent's decision that the government information identified in Items 1 to 5 is not held by the agency is affirmed. 2. The Respondent's decision that the application for government information identified in Items 6 to 14 is not a valid access application is affirmed. 3. The Respondent's decision that the government information identified in Item 16 is not held by the agency is affirmed. 4. The Respondent's decision that the deleted information marked "s 74 material not within scope" is not relevant to the information applied for in Item 15, is affirmed. 5. The Respondent's decision to refuse to provide access to the government information marked "s 14 cl. 3(a), s 14 cl 3(b)" in response to the access application in Item 15, is affirmed. 1. In relation to Ms Wojciechowska's second application I make the following orders: 1. The Respondent's decision in relation to Item 1 is set aside. The following decision is made in substitution for that decision: Ms Wojciechowska is to be given access to the information in Item 1. The form of access is by providing a reasonable opportunity to inspect a record containing the information, together with such facilities as may be necessary to enable the information to be viewed. A condition of access is that Ms Wojciechowska not make any record of the information including by taking notes, making an image or copying the record. 1. The Respondent's decisions that it held no information in relation to Item 2 is affirmed. 2. The Respondent's decisions that it held no information in relation to Item 3 and Item 5 is affirmed. 3. The Respondent's decision to refuse to provide access to the government information in Item 4 marked "s 14 cl. 3(a), s 14 cl 3(b)" is affirmed. 4. The Respondent's decision in relation to Item 8 is set aside. In substitution for that decision, the following decision is made: Access is given to a copy of the information in the letter from Justice Armstrong to the Attorney General referred to in paragraph 16 of the affidavit of James O'Young dated 21 November 2023 which discloses the date of all 2021 interviews conducted for the position of Deputy President and Head of NCAT's Guardianship Division. Access is refused to the remainder of the information in that letter apart from the formal parts of the letter including the address, the date, the salutation and the sign off. 1. Pursuant to s 65(1) of the Administrative Decisions Review Act 1997, the Respondent's implied decision that it does not hold information responsive to Item 10 is remitted to the Respondent for reconsideration in accordance with these reasons. 2. The Respondent's decision in relation to Items 6, 7 and 9 (apart from Ms Britton's CV) is set aside. The following decision is made in substitution for that decision: Access to the information is refused because there is an overriding public interest against disclosure. 1. Pursuant to s 65(1) of the Administrative Decisions Review Act 1997, the Respondent's decision not to give access to Ms Britton's CV is remitted to the Respondent for reconsideration in accordance with these reasons. 2. The Respondent's decision to refuse to provide access to the information in Item 11 because there is an overriding public interest against disclosure of the information is affirmed. 1. In relation to Ms Wojciechowska's third application I make the following order: 1. The Respondent's decision that the third access application is not a valid access application is affirmed.

Wojciechowska v Secretary, Department of Communities and Justice

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Judgment (65 paragraphs)

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Cases Cited (17)

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